Not-for-profit company that built 460-seat theatre without permission loses appeal against enforcement notice

A planning inspector's decision to uphold Fareham Borough Council's enforcement notice against a theatre company that built a 460-seat theatre without planning permission was lawful, a High Court judge has found.

In Titchfield Festival Theatre Ltd v Secretary of State for Housing, Communities, and Local Government & Anor [2025] EWHC 883 (Admin) (16 April 2025), Deputy Judge Neil Cameron KC dismissed both grounds advanced by Titchfield Festival Theatre.

The case arose after the not-for-profit community and youth theatre company based in Fareham received planning permission in 2022 to extend its warehouse building onto a new site (Area C).

It was also permitted to raise the warehouse's roof and extend its walls in order to join the building to the site's adjacent buildings (Areas A and B).

A brand new 463-seat theatre was subsequently created, which straddled Areas B and Areas C, known as the Arden Theatre.

The council later issued an enforcement notice arguing that the work represented a material change of use of the land without planning permission.

The notice called on the company to cease the use of the land in Areas B and C as a theatre, demolish the stage, remove the seating and take down the lighting and sound equipment.

However, the company appealed against the enforcement notice, claiming that use rights can only be extinguished in a set of narrow circumstances, which did not apply to their works.

It argued that work on the site did "not come close to a radical change or the intention of fresh start in the character of the site" required to be considered a change of use.

The inspector dismissed the appeal and upheld the enforcement notice.   

The company then challenged the decision at the High Court under two grounds.

First, it argued that the inspector had failed to give a valid or rational reason for concluding that theatre use rights in Area B had been lost.

It said it was irrational to regard the change from a small theatre to a larger one as a change in the character of the use.

Meanwhile, the second ground contended that the inspector erred in law in holding that section 57(4) of the Town and Country Planning Act 1990 did not act to allow the unit B land to revert to its last lawful use (theatre use).

However, the judge upheld the inspector's findings and dismissed both grounds of challenge.

The court therefore dismissed the appeal in full.

Chairman of the Planning Committee, Cllr David Foot, said: "I'm pleased the High Court has found the Planning Inspector’s decision legally sound which, in turn, upholds the Planning Enforcement Notice served by this Council. It is extraordinary that, despite warnings, Titchfield Festival Theatre chose to build a 450-seat theatre without planning permission.

“I want to reassure all residents that this Council will act against any development carried out without planning permission and deemed unacceptable in planning terms."

Titchfield Festival Theatre has been approached for comment.

In a statement given to the BBC, it said: "The trustees are obviously disappointed with the ruling from the judicial review.

"We are taking further legal advice on the potential outcomes. In the meantime the Arden Theatre continues to operate."

Adam Carey